When I was approximately 13 years old I wrote a “The Lord of the Rings” fanfiction. It never got past three chapters, mostly encompassing the moment Merry and Pippin are captured by Orcs until the rest of the Fellowship find them after The Battle of Isengard. It also never saw the light of day, and now collects dust in a 42 page document on my computer titled “Old Stories” that makes me sick to my stomach every time I open it. And I’m sure the Tolkien Estate would like it to stay there.
When I logged onto Twitter on March 7 and saw #Tolkien trending, I enthusiastically clicked the hashtag, hoping for updates on Amazon Prime’s upcoming “The Lord of the Rings: The Rings of Power.” What I got was far less desirable: “The Estate sure would like to make Tolkien irrelevant to contemporary creative and consumer culture” read one tweet. “Tolkien estate once again in their grima wormtongue era” read another. There were hundreds more like this — statements blatantly calling out the Tolkien Estate’s (who oversees the rights to the works of J. R. R. Tolkien) stance on fanwork surrounding “The Lord of the Rings” franchise, which had been reworded and brought back to light with the website’s relaunch.
Almost every tweet I saw had a screenshot or link to the Tolkien Estate’s FAQs attached. On fanfiction, they stated, “You cannot copy any part of Tolkien’s writing or images, nor can you create materials which refer to the characters, stories, places, events or other elements contained in any of Tolkien’s works.” The language of the FAQs is a little disturbing — I’ve written a lot of fanfiction in my day and, as a young teenager, did a lot of research around the legality of fanwork just in case my writing got me into any trouble. In all of that time, I have never seen an author or estate crack down so severely on fanwork, and it is baffling that the Tolkien Estate, the manager of arguably one of the most successful literature and film franchises of all time, would want so badly to prevent its fans from participating in the universe that it protects.
The Tolkien Estate has a long history of this sort of behavior. In the 2015 version of their FAQs, the question of writing stories set in Middle-earth was posed. The Tolkien Estate’s response was, “The short answer is most definitely NO!” The 2007 version similarly stated, “The simple answer is NO.” Both answers go on to state that, while tempting, the publication of fanfiction about Tolkien’s works is not allowed nor will the Tolkien Estate ever allow it on legal grounds. The Daily reached out to the Tolkien Estate for comment on their policies, but they did not respond.
The truth is that the legality of fanfiction is complicated. Very complicated. Fanfiction is technically a derivative work, so copyright holders are allowed to sue fanfiction writers on the basis of copyright infringement. The copyright holder just needs proof that the writer copied or used the copyrighted work in their fanfiction. This is where fair use comes in: Just as fanfiction is a derivative work, it can also, in some cases, be defended under fair use as a transformative work. If a piece of fanfiction follows the original work too closely, seeks commercial profit or impacts the market of the original work, fair use is less likely to be a strong legal argument. However, if a work moves far enough away from the original and does not profit off of its publication, the argument strengthens. The legality of fanfiction is still murky and, even now, is widely subjective and often considered on a case-by-case basis.
Interestingly enough, the Tolkien Estate has yet to take any formal legal action against fans producing Tolkien-inspired writing. There are a few factors to consider when discussing the Estate’s stance on fanfiction, and their failure to make good on those claims. For one, the Tolkien Estate simply is not the law. So long as your work does not violate the laws I outlined above — and the countless other copyright laws I probably don’t know about — then the Tolkien Estate cannot stop you from writing all the Legolas fanfiction your heart desires. Second, takedown notices proffered by the Estate do not constitute lawsuits. Simply put, the Tolkien Estate can’t do much about fanfiction despite their proselytizing.
And even if they did attempt legal action against fanfiction writers, the Tolkien Estate would be alienating a massive chunk of its audience. On Wattpad, searching “Lord of the Rings” yields around 30,000 results, and “The Hobbit” on AO3 shows 40,046 works. To remove that massive amount of material from the internet is to remove the expansiveness of Tolkien’s worlds and works, and it would only signal to fans that they are not wanted by the Tolkien Estate. See, fanfiction goes beyond all the complicated legal jargon — it is a crucial element of modern fandom.
Fanfiction provides both readers and writers with several experiences that traditional publication and literature companies cannot. It operates as a space in which authors can personalize their favorite content, experiment with diversity and identity in fictional worlds, hone written skills and engage in a collaborative part of the internet. The beauty of fanfiction is that it is subject to the whims of fans who wish to explore their favorite worlds. It allows for critical engagement and communal imagination about what could happen in a text, and it encourages readers to delve into the stories that inspire them to write. Creating fanfiction does not require money or even much experience — it only requires a pinch of courage and a good deal of imagination.
J. R. R. Tolkien left behind a world that has only grown with the times and has been passed down through generations to land at this exact moment when it is easier than ever for writers to engage with their favorite texts and share their work. I argue that the Tolkien anthology has only flourished and become more well-worn and well-crafted with the advent of fanfiction, and it seems foolish that the Tolkien Estate would actively desire to cut off a medium that has helped make the modern Lord of the Rings fandom what it is. Of course, I am not a member of the Tolkien family, nor do I have any claim to “The Lord of the Rings” beyond making my roommates watch the movies with me, but I find it disheartening that the estate would seek to destroy meticulously-crafted fanwork that functions as a love letter to Tolkien’s universe.
So, do I think that the Tolkien Estate would break my door down and demand that I delete this article if they discovered my three chapters of fanfiction? No. Do I think they will bring the hammer of law down on every “The Lord of the Rings” or “The Hobbit” fanfiction writer in the world? Also, no — there are way too many of them for that and AO3’s legal team is way too robust. I do not posit that Tolkien’s works are nothing without fanfiction, but I do believe that his life’s work has only been made more beautiful by fans’ love for it. The Tolkien Estate may believe otherwise, but to that I say keep writing. When the fancy for Aragorn fanfiction strikes you, write it and rest easy in the knowledge that there is a strong community behind you, and that fellowship makes it easier to keep the powers of the Tolkien Estate at bay.
Daily Arts Writer Maddie Agne can be reached at firstname.lastname@example.org.